Ohio Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

[OH-239; Amendment Number 73]

Ohio Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Ohio regulatory

program (hereinafter referred to as the ``Ohio program'') under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). The

proposed amendment consists of regulatory changes to implement the

remining standards of the Federal Energy Policy Act of 1992. The

amendment is intended to revise the Ohio program to be consistent with

the corresponding Federal regulations as amended on November 27, 1995.

(60 FR 58480).

EFFECTIVE DATE: February 28, 1997.

FOR FURTHER INFORMATION CONTACT:

George Rieger, Field Branch Chief, Appalachian Regional Coordinating

Center, Office of Surface Mining Reclamation and Enforcement, 3 Parkway

Center, Pittsburgh, PA 15220, Telephone: (412) 937-2153.

SUPPLEMENTARY INFORMATION:

I. Background on the Ohio Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Ohio Program

On August 16, 1982, the Secretary of the Interior conditionally

approved the Ohio program. Background information on the Ohio program,

including the Secretary's findings, the disposition of comments, and

the conditions of approval can be found in the August 10, 1982, Federal

Register (47 FR 34688). Subsequent actions concerning conditions of

approval and program amendments can be found at 30 CFR 935.11, 935.15,

and 935.16.

[[Page 9077]]

II. Submission of the Proposed Amendment

By letter dated July 23, 1996, (Administrative Record No. OH-2168-

00) Ohio submitted a proposed amendment to its program pursuant to

SMCRA. Ohio submitted the proposed amendment at its own initiative. The

Ohio amendment proposes to implement the remining standards of the

Federal Energy Policy Act of 1992 and the corresponding Federal

regulations as amended on November 27, 1995. (60 FR 58480). OSM

announced receipt of the proposed amendment in the August 26, 1996,

Federal Register (61 FR 43696) and in the same document opened the

public comment period and provided an opportunity for a public hearing

on the adequacy of the proposed amendment. The public comment period

closed on September 25, 1996. However, a complete description of

certain amendments concerning permit application requirements and

revegetation time frames was inadvertently omitted from that notice.

Also, Ohio submitted corrections to its proposed amendments by letter

dated October 4, 1996, (Administrative Record No. OH-2168-07).

Therefore, OSM announced these items in the October 18, 1996, Federal

Register (61 FR 54375) and reopened the public comment period until

November 4, 1996. On January 23, 1997, Ohio submitted additional

changes (Administrative Record No. OH-2168-12) as a result of

discussions with OSM.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment. Revisions not specifically discussed below concern

nonsubstantive wording changes, or revised cross-references and

paragraph notations to reflect organizational changes resulting from

this amendment.

A. Revisions to Ohio Regulations That Are Substantively Identical to

the Corresponding Federal Regulations

1. OAC 1501:13-1-02 Definitions.

(a) New paragraph (OOO) ``Lands eligible for remining'' has been

added to mean those lands that would otherwise be eligible for

expenditures under section 1513.37 of the Revised Code.

(b) New paragraph (JJJJJJ) ``Unanticipated event or conditions''

has been added to mean (as used in 1501:13-5-01 of the Administrative

Code) an event or condition related to prior mining activity which

arises from a surface coal mining and reclamation operation on lands

eligible for remining and was not contemplated in the applicable

permit.

The proposed changes are found to be substantively identical to the

corresponding Federal Regulations at 30 CFR 701.5.

2. OAC 1501:13-5-01 Review, public participation, and approval or

disapproval of permit applications and permit terms and conditions.

(a) New paragraph (D)(7) has been added to provide that subsequent

to the effective date of this rule, the prohibitions of paragraph

(D)(3) of this section regarding the issuance of a new permit, shall

not apply to any violation that occurs after that date; is unabated;

and results from an unanticipated event or condition that arises from a

surface coal mining and reclamation operation on lands that are

eligible for remining under a permit issued pursuant to OAC 1501:13-4-

12(L) and held by the person making application for the new permit.

(b) New paragraph (D)(7)(D) provides that for permits issued under

OAC 1501:13-4-12(L), an event or condition shall be presumed to be

unanticipated for the purposes of this paragraph if it: arose after

permit issuance; was related to prior mining; and was not identified in

the permit.

(c) New paragraph (E)(19) and subparagraphs (A), (B), and (C), are

added to require that, for operations which will include remining areas

under 1501:13-4-12(L) of the Administrative Code, the application

includes (A) Lands eligible for remining; (B) an identification of the

potential environmental and safety problems related to prior mining

activity which could reasonably be anticipated to occur at the site;

and (C) mitigation plans to sufficiently address these potential

environmental and safety problems so that reclamation as required by

the applicable requirements of Chapter 1513 of the Revised Code can be

accomplished. Additionally, a semicolon and the word ``and'' are added

at the end of paragraph (E)(18).

The proposed changes are found to be substantively identical to the

corresponding Federal regulations at 30 CFR 773.15(b) and (c)(13).

3. OAC 1501:13-9-15 Revegetation.

Paragraph (F)(2) is revised, and subparagraph (F)(2)(A) is added,

to provide that the required period of extended responsibility on lands

eligible for remining shall be not less than two full years for permits

issued pursuant to the requirements of OAC 1501:13-4-12 and renewals

thereof.

The Director finds that these revisions are substantively identical

to portions of the corresponding Federal regulations at 30 CFR 816 and

817.116(c)(2)(i) and (ii).

B. Revisions to Ohio Regulations That Are Not Substantively Identical

to the Corresponding Federal Regulations

1. OAC 1501:13-4-12 Requirements for permits for special categories

of mining.

(a) New paragraph (L) has been added to include the requirements

for any person who submits a permit application to conduct a surface

coal mining operation on lands eligible for remining. The requirements

of paragraph (L) shall apply until September 30, 2004, or any later

date authorized by federal law. The permit application must include:

(1) A description of the proposed lands eligible for remining and a

demonstration, to the satisfaction of the Chief, how such lands meet

the eligibility requirements specified by Revised Code Section 1513.37;

(2) Identification, to the extent not otherwise addressed in the permit

application, of any potential environmental and safety problems related

to the prior mining activity at the site which could be reasonably

expected to occur. This identification shall be based on a due

diligence investigation which shall include visual observations at the

site, a record review of past mining at the site, and environmental

sampling tailored to current site conditions; and (3) A description,

with regard to potential environmental and safety problems identified

in paragraph (2), of the mitigative measures that will be taken to

ensure that the applicable reclamation requirements of Revised Code

Chapter 1513 and these rules can be met.

The federal regulation at 30 CFR 785.25(b) requires that the

remining application permit be made in accordance with the requirements

of subchapter G, which are the permitting requirements. The Ohio rule

at OAC 1501:13-4-12(L) does not include this requirement, however, OAC

1501:13-4-12(A) does require all special categories of mining to comply

with the general permitting requirements of OAC 1501:13-4, therefore

the Director finds that the proposed change at paragraph (L) is no less

effective than the corresponding Federal regulations at 30 CFR 785.25

(b) and (c) when read in conjunction with OAC 1501:13-4-12(A).

(b) The Director also finds that paragraphs (L)(1) and (L)(3) are

substantively identical to 30 CFR 785.25(a) and (b)(2), respectively.

Paragraph (L)(2) is nearly identical to 30 CFR 785.25(b)(1) except that

Ohio did

[[Page 9078]]

not include the word ``review'' in OAC 1501:13-4-12(L)(2) when

describing the evaluation of past mining at the site that is required

during the permitting process. 30 CFR 785.25(b)(1) requires a record

review of past mining at the site. Ohio has addressed this item by

including the word ``review'' in the version of OAC 1510:13-4-12(L)(2)

that was officially filed through the Ohio rule promulgation process

with the Ohio Legislative Service Commission on January 16, 1997. Ohio

provided a copy of this letter to OSM on January 23, 1997. Therefore

the amendment is found to be as effective as 30 CFR 785.25(b)(1) based

on this revision.

2. OAC 1501:13-9-15 Revegetation.

(a) Ohio's revegation performance standards for lands eligible for

remining generally cross-reference the performance standards for

previously undisturbed lands, thus, to avoid confusion, Ohio deleted

the references to ``five years'' for the period of responsibility.

While the period of responsibility will remain five years for most

mining operations, the deletions are consistent with the change in 30

CFR 816/817.116(c)(2)(i) which allows remining operations to have a

shorter period of responsibility. Affected paragraphs and subparagraphs

are: (F)(3), (F)(3)(a), (G)(3)(a), (I)(6), (J)(1)(b), (F)(4)(d),

(H)(2), (L)(2), and (M)(4).

(b) Subparagraph (H)(2) is further amended by adding the words

``and hay crops also meet, at a minimum, the ground cover standards of

paragraph (G)(3)(B) during the last year of the period of extended

responsibility.'' The current rule could have been interpreted to allow

cropland with hay as the approved crop to only meet productivity

requirements without a ground cover. Ohio is adding a ground cover

requirement on cropland when hay is the required crop. While the

federal rules at 30 CFR 816.116(b)(2) only require a success standard

approved by the regulatory authority for cropland, the Director finds

the success standard to be consistent with the revegetation

requirements of 30 CFR 816/817.111.

(c) Paragraph (L) is amended by deleting the words ``undeveloped

land'' from the revegetation success standards for forest land, fish

and wildlife habitat and other postmining land uses that have woody

vegetation. Specific revegetation success standards for undeveloped

land are provided under in OAC 1510:13-9-15(M). OSM previously approved

Ohio's program amendment #67 to change OAC 1501:13-9-17(B)(2) to allow

undeveloped land as a post mining land use only if the pre-mining land

use was undeveloped. That amendment also eliminated OAC 1501:13-9-

17(D)(8) which provided that proposals for a post mining land use of

undeveloped land would be treated as if the post mining land use were

forest land/fish and wildlife habitat. Therefore, including undeveloped

land with the forest land/fish and wildlife land use revegetation

standards in OAC 1501:13-9-15(L) is no longer necessary. The deletion

of ``undeveloped land'' in paragraph (L) is consistent with the earlier

deletion that was approved by OSM on July 27, 1994 (59 FR 38123,

38124). Thus, the Director finds that this deletion is not inconsistent

with 30 CFR 816./817.116(b).

(d) New paragraph (O) is added to include revegetation standards

for areas eligible for remining in each land use category. New

subparagraph (1)(A) includes standards for revegetation of pasture and

grazing lands and requires that for Phase II bond release, revegetation

standards for remined lands are the same as those for previously

unmined lands as required by paragraph (G)(2) of this rule. For Phase

III bond release, however, new subparagraph (1)(B) requires that

remined lands in this category must have ground cover equal to or

exceeding seventy percent cover and be adequate to control erosion with

no single area with less than thirty percent cover exceeding the lesser

of three thousand square feet or .3 percent of the land affected.

New subparagraph (2)(A) includes standards for revegetation of

agricultural cropland, other than prime farmland, and requires that for

Phase II bond release, revegetation standards for remined lands are the

same as those for previously unmined lands as required by paragraph

(G)(2) of this rule. New subparagraph (2)(B) includes for Phase III

bond release, crop yield data must at a minimum equal the average

county yield for any year of the responsibility period except the first

year and, hay crops also must have ground cover equal to or exceeding

seventy percent cover and be adequate to control erosion with no single

area with less than thirty percent cover exceeding the lesser of three

thousand square feet or .3 percent of the land affected.

New subparagraph (3)(A) includes standards for revegetation of

industrial, residential, or commercial land use, other than commercial

forest land, and requires that for Phase II bond release, revegetation

standards for remined lands are the same as those for previously

unmined lands as required by paragraph (G)(2) of this rule. For Phase

III bond release, however, new subparagraph (3)(B) requires that

remined lands in this category must have ground cover equal to or

exceeding seventy percent cover and be adequate to control erosion with

no single area with less than thirty percent cover exceeding the lesser

of three thousand square feet or .3 percent of the land affected.

New subparagraph (4)(A) includes standards for revegetation of

forest land, fish and wildlife habitat, or other land which requires

the establishment of woody vegetation, and requires that for Phase II

bond release, revegetation standards for remined lands are the same as

those for previously unmined lands as required by paragraph (L)(1) of

this rule. For Phase III bond release, however, new subparagraph (4)(B)

requires that remined lands in this category must meet the requirements

of paragraph (L)(2) of this rule except that, of the minimum countable

trees per acre, eighty (80) percent have been in place for at least two

(2) years, on each acre on which trees or shrubs are to be planted.

New subparagraph (5)(A) includes standards for revegetation of

undeveloped land and requires that for determining success of

revegetation and for Phase II bond release, revegetation standards for

remined lands are the same as those for previously unmined lands as

required by paragraph (M)(1), (2) and (3) of this rule. For Phase III

bond release, however, new subparagraph (5)(B) requires that remined

lands in this category must meet the requirements of paragraph (M)(3)

of this rule except that the herbaceous ground cover on areas not

planted with trees or shrubs must have ground cover equal to or

exceeding seventy percent cover and be adequate to control erosion with

no single area with less than thirty percent cover exceeding the lesser

of three thousand square feet or .3 percent of the land affected.

New subparagraph (6)(A) includes standards for revegetation of

recreational areas where herbaceous vegetation comprises the ground

cover, and requires that for Phase II bond release, revegetation

standards for remined lands are the same as those for previously

unmined lands as required by paragraph (G)(2) of this rule. For Phase

III bond release, however, new subparagraph (6)(B) requires that

remined lands in this category must have ground cover equal to or

exceeding seventy percent cover and be adequate to control erosion with

no single area with less than thirty percent cover exceeding the lesser

of three thousand square feet or .3 percent of the land.

New subparagraph (6)(C) includes standards for revegetation of

recreation

[[Page 9079]]

areas which require the planting of woody vegetation, and requires that

for Phase II bond release, revegetation standards for remined lands are

the same as those for previously unmined lands as required by paragraph

(L)(1) of this rule. For Phase III bond release, new subparagraph

(6)(D) requires that remined lands must meet the same requirements of

paragraph (L)(2) of this rule which pertain to previously unmined lands

in this category.

The proposed rules discussed above pertaining to Phase II bond

release for each appropriate land use category for remined areas are

the same rules that Ohio applies for Phase II bond release for

previously unmined areas. The proposed rules in (O)(1)(B), (O)(2)(B),

(O)(3)(B), (O)(5)(B) and (O)(6)(B) pertaining to Phase III bond release

for each appropriate land use category require ground cover to equal or

exceed 70 percent and adequately control erosion in the last year of

the extended responsibility period on remining sites. The corresponding

Federal rule at 816.116(b)(5) requires the vegetative ground cover

shall be not less than the ground cover existing before redisturbance

and shall be adequate to control erosion. The Federal rule does not

specify required percentages of ground cover. The question is whether

or not 70 percent cover is adequate, especially if the ground cover was

greater than 70 percent before remining. To evaluate the adequacy of

the proposed rule it is necessary to look at the entire Ohio rule as it

pertains to revegetation success standards. Ohio's general requirements

in OAC 1501:13-9-15(B)(3) and (4) require vegetation to be at least

equal in extent of cover to the natural vegetation of the area; and

control surface erosion. When OAC 1501:13-9-15(O) is considered in

conjunction with these provisions of the Ohio rule, the proposed

success standards for remining meet the requirements of the Federal

rule at 30 CFR 816.116(b)(5). Therefore, in the rare case of an area

being eligible for remining having greater than 70 percent ground cover

before remining, the mining operator would be held to the general

requirements of OAC 1501:13-9-15(B)(3) & (4) that vegetation be at

least equal to the natural vegetation of the area and capable of

controlling surface erosion. Additionally, the requirements that ground

cover meet or exceed 70 percent in the last year of the period of

extended responsibility is consistent with the Federal rule at 30 CFR

816.116/817.116(c)(2)(ii).

The Director finds that Ohio's proposed rules listed above are no

less effective than the corresponding Federal Regulations at 30 CFR

816.116 and 30 CFR 817.116.

The following non-substantive changes are also proposed by Ohio:

(d) Paragraph (M) is further amended by separating the first

sentence into two items with the second item being labeled as (1) and

re-numbering the subsequent items accordingly. No word changes were

made to these items.

(e) Definitions of ``abatement plan'', ``base line pollution

load'', ``best available technology economically achievable'',

``pollution abatement area'', ``pre-existing discharge'', and

``remining NPDES permit'' are relocated from OAC 1501:13-4-15 to OAC

1501:13-1-02, without revision, and remaining paragraphs in both

sections are re-lettered accordingly.

C. Revisions to Ohio's Regulations With No Corresponding Federal

Regulations

1. OAC 1501:13-4-08 Hydrologic map and cross-sections.

New paragraph (A)(15) has been added to include in the hydrologic

map any land determined to be eligible for remining.

2. OAC 1501:13-4-10 Uniform color code and map symbols.

New paragraph (A)(6) has been added to include any area determined

to be eligible for remining shall have its perimeter designated with a

dashed black line and the areas therein clearly labeled ``Remine''.

3. OAC 1501:13-4-15.

(a) The title of this section is changed from ``Authorization to

conduct coal mining on previously mined areas'' to ``Authorization to

conduct coal mining on pollution abatement areas''.

While there are no direct Federal counterparts to these revisions,

the Director finds that they are not inconsistent with SMCRA or its

corresponding Federal regulations, and do not render the State program

any less effective than the federal regulations.

IV. Summary and Disposition of Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. Because no one

requested an opportunity to speak at a public hearing, no hearing was

held. Comments were received from the Ohio Historic Preservation Office

in a letter dated September 13. The commenter stated that ongoing

coordination with the Ohio Historical Preservation Office is necessary

to address preservation concerns. The Director notes that OAC 1501:13-

4-01(B) requires coordination of review and issuance of permits with

other federal or state laws which includes the National Historic

Preservation Act of 1966 and that OAC 1501:13-5-01(A)(3) requires that

a written notification of a permit application, renewal or revision be

sent to all federal, state and local governmental agencies that have an

interest in the area of the proposed operations. There are no remining

operations that are not included in the permit application process. The

program amendment does not propose to change any coordination that

currently exists between OHPO and DMR concerning review of cultural and

historical resources. Additionally, the commenter was concerned that

remining permit applications will not be reviewed by Ohio to determine

if the proposed permit area is included within an area designated as

unsuitable for mining. The Director disagrees with the commenter.

Pursuant to OAC 1501:13-5-01(E)(4), all mining applications, including

remining sites, cannot be approved if the proposed permit area is

included within an area designated unsuitable for coal mining

operations.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(I), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Ohio program. The U.S. Army

Corps of Engineers responded that the changes were satisfactory. No

other comments were received.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated under the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).

None of the revisions that Ohio proposed to make in this amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

V. Director's Decision

Based on the above finding(s), the Director approves the proposed

amendment as submitted by Ohio on July 23, 1996, and revised on October

4, 1996 and January 23, 1997. The Director is approving the proposed

regulations with the understanding that they be promulgated in a form

identical to that submitted to OSM. Any differences between these

regulations and the State's final regulations will be

[[Page 9080]]

processed as a separate amendment subject to public review at a later

date.

The Federal regulations at 30 CFR Part 935, codifying decisions

concerning the Ohio program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

Executive Order 12988

The Department of the Interior has conducted the reviews by section

3 of Executive Order 12988 (Civil Justice Reform) and has determined

that, to the extent allowed by law, this rule meets the applicable

standards of subsections (a) and (b) of that section. However, these

standards are not applicable to the actual language of State regulatory

programs and program amendments since each such program is drafted and

promulgated by a specific State, not by OSM. Under sections 503 and 505

of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and

732.17(h)(10), decisions on proposed State regulatory programs and

program amendments submitted by the States must be based solely on a

determination of whether the submittal is consistent with SMCRA and its

implementing Federal regulations and whether the other requirements of

30 CFR Parts 730, 731, and 732 have been met.

National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR 935

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 7, 1997.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 935--OHIO

1. The authority citation for part 935 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 935.15 is amended by adding paragraph (eeee) to read as

follows:

Sec. 935.15 Approval of regulatory program amendments.

* * * * *

(eeee) The following rules, as submitted to OSM on August 26, 1996,

and revised on October 4, 1996, and January 23, 1997, are approved

effective February 28, 1997:

OAC 1501:13-1-02 (000) and (JJJJJJ).... Definitions.

OAC 1501:13-4-08 (A)(15)............... Hydrologic map and cross

sections.

OAC 1501:13-4-10 (A)(6)................ Uniform color code and map

symbols.

OAC 1501:13-4-12 (L)................... Requirements for permits for

special categories of mining.

OAC 1501:13-4-15 (deletion of (B))..... Authorization to conduct coal

mining on pollution abatement

areas.

OAC 1501:13-5-01 (D)(7), (D)(7)(D), Review, public participation,

(E)(19) and (E)(19) (A), (B) and (C). and approval or disapproval of

permit applications and permit

terms and conditions.

OAC 1501:13-9-15 (F)(2), (F)(2)(A), Revegetation.

(F)(3), (F)(3)(a), (F)(4)(d),

(G)(3)(a), (H)(2), (I)(6), (J)(1)(b),

(L), (L)(2), (M)(4), (O), and (O) (1)

through (6).

[FR Doc. 97-5038 Filed 2-27-97; 8:45 am]

BILLING CODE 4310-05-M